What Every Mother Needs to Know About Child Custody

When two people decide to call it quits, it goes without saying that their top priority is not who’s getting the couch but who’s getting the kids.

Gone are the days when the mother was automatically deemed the preferred parent. Nine months of cravings, cramps, and swollen ankles are no longer considered a factor in determining custody. Fathers have custody rights, too, and you will be smart to begin the “battle” armed with the proper knowledge and, as will be discussed, a mind open to the possibility of not battling at all.

The basics

Let’s begin at the beginning. What, exactly, is custody?

Custody is a single word comprising two legal concepts—legal custody and physical custody. These two concepts are further broken down into “joint” and “sole.”

Generally, joint legal custody confers decision-making power and legal authority over all major child-rearing decisions to each parent equally (or very close to equally).

Sole legal custody, as the name implies, vests only one parent with the authority to make all necessary parenting decisions and confers upon the other parent only the right to visit with the children pursuant to an ordered or agreed-upon visitation schedule.

Joint physical custody, more commonly referred to as shared physical custody, means that each parent will equally (or, again, very close to equally) spend custodial time with the children. Since it can be logistically difficult to have a true 50/50 division of time with the kids, the parent with whom the children spend more than 50% of their time will be deemed the primary physical custodian. (This is important for child support and tax purposes.)

Lastly, final decision-making authority—meaning the authority to have the final say in the event of a disagreement with the other parent (aka the coparent)—may be vested with one parent over the other in joint custodial situations.

The legal standard: Best interests of the children

The overarching legal standard for determining the proper custody arrangement is the “best interests of the children” standard, the operative word here being children. The court doesn’t care what’s in your best interest or your ex’s best interest, nor will it care whose idea it was to get divorced in the first place. Although the court will consider several factors in rendering a custody determination if it must, the parent with the greater “right” to be pissed off at the other is not among them. As such, the court’s definition of what’s in your child’s best interest may be very different from your own.

Here are a few things to keep in mind when dividing the greatest asset of your marriage—time with your children:

Think in terms of a custody agreement rather than a custody battle. Truth is, lousy husbands can be terrific fathers. That pill can be a little hard to swallow, I know. But if you’re going to get real about devising a schedule that leaves your children happy and well adjusted, as opposed to being caught in the middle of a constant tug-of-war, you need to honestly assess the other parent’s ability to parent and not confuse that with his ability to husband. The marriage may be over, but fatherhood is forever.

Although the courts have the ultimate legal authority to determine your children’s “best interests,” keep in mind the judge has never been, and will never be, the one helping with your kids’ homework, begging them to eat their broccoli, attending after-school sports, telling them a bedtime story, or bandaging an elbow. In other words, the court will never really know your children—or you, for that matter. It is, in essence, a stranger with a gavel and the right to do what he or she sees fit, whether you like it or not.

Whenever I’m advising my clients with respect to their custody options, I always begin with one basic premise and that is to do your best to leave the court out of it. How? By (gulp) agreeing to agree. (See also “How Much Is This Gonna Cost Me?”)

It’s no surprise that, immediately after I suggest this to my clients, more often than not I’m met with a hyperincredulous, “Say what? If we could agree on anything, we’d still be married!”

Believe me, I get it.

Meeting in the middle on something as important as time-sharing your children, especially if bad feelings are running deep between you and your ex, is tough. But I assure you, it is entirely possible. All you have to do is make sure your decisions are coming from a place of pure parental love, not spousal hurt.

I’ve developed an easy exercise to help you quickly get to the bottom of what is driving you. If you find yourself struggling over every little decision or to reach a custodial agreement at all, ask yourself these three questions—and be brutally honest with your answers:

Am I trying to punish my ex and disguising it as a parenting decision? Consider this hypothetical: You and your ex are trying on a temporary custody agreement for size, when your ex contacts you asking to take the kids to Yankee Stadium even though it’s not on “his” day. If you immediately look for reasons to declare a loud and hearty “No!” examine your reasons why. If your thought bubbles are filled with phrases such as “He doesn’t deserve to have more time,” or “He’s probably bringing that girlfriend/boyfriend/brother-in-law I don’t like,” you are almost certainly motivated by what is bothering you, as opposed to what would most benefit your children. In truth, it is just as easy (if not easier) to search for the reasons that would get you to a “Yes!” Custody and visitation decisions you make should be based only on what will serve your children best and not on what you feel the other parent “deserves.”

Am I acting out of fear? When you find yourself strongly disagreeing with your ex on coparenting decisions, conjure that curious five-year-old we all were once, and keep asking yourself, Why? Again using the previous hypothetical as an easy example, are you automatically saying no because you don’t want your kids to have fun without you? Why? What will happen if your kids have fun without you? Will they fall out of love with you? Want to live with their dad? Start calling you by your first name instead of Mom? These are all fear-based reasons, and fear inhibits sound decision making. Once you recognize the real reason you are saying no, you will be in the best position to kick your fears to the curb.

Am I putting my own needs ahead of my children’s? In other words, are you resisting giving in to your coparent’s request because you are still not loving your alone time and therefore, the less of it you have, the better? Keeping your children on a tight leash because you find the sound of an empty house deafening—or something equally self-serving—is never a basis from which to make smart parenting decisions.

Make the court the last resort. If you and your ex cannot agree on how your children’s time will be spent between your separate households, a judge will decide for you. To do this, he or she will get all up in your business by ordering you to submit to a forensic evaluation and/or assigning an attorney to represent your children.

A forensic evaluation is typically conducted by a professional counselor whom you’ve never met (and will never see again) after he or she has had the opportunity to examine your home, interview your relatives, determine your attitude toward your coparent, discover your habits (illegal or otherwise), and basically judge and report on how you live and breathe. But don’t worry, your ex will suffer through it, too.

If the children are appointed an attorney, the relationship between them and their lawyer—just like the relationship between all clients and lawyers—is confidential. You, as a parent, are not allowed to know what the children are discussing with their lawyer until the lawyer reports his or her impressions, determinations, and suggestions to the court. Also, the children’s attorney doesn’t have to speak with you (and oftentimes won’t), regardless of your own burning desire to invite him or her for coffee so you can spill on your ex or suck up, or both.

The court often will give great weight to the findings of the forensic evaluation and the attorney for the children. In addition, the factors most commonly used to determine custody are:

Availability of each parent—the courts will give deference to the parent who can spend time with the children, as opposed to a parent who must leave the kids in someone else’s care.

Any existing informal agreements. If they’re working, the court will be loathe to upset the status quo.

Financial wherewithal of each parent, particularly whether one parent is financially incapable of providing a suitable, stable household.

Findings of child abuse or neglect.

Home environment: Do the children have their own bedrooms? Is one parent parading an endless stream of temporary boyfriends or girlfriends into the home? Does a parent live with other adults whose lifestyles are detrimental to the kids? Etc.

The mental and emotional stability of each parent (including a parent’s observable behavior in court).

Who the primary caretaker has been.

Siblings, as in not splitting them up if the sibling relationships are healthy.

The children’s preferences.

This list is not exhaustive but does set forth the major custodial considerations.

The legal minefield to avoid

The courts cannot rule that joint legal custody is in the best interests of the children following a custody battle. If two parents cannot agree on important decisions involving the children, then joint legal custody is a recipe for failure and therefore legally unsound.

Hence, following a custody trial, the court is often left with no choice but to divest parental power completely from one parent and grant the other (as mentioned previously) sole legal custody.

Are you with me? Because what I just said is if you cannot agree, one parent may lose legal custody—and that parent could be you.

When each parent is levelheaded and loving, and wants to continue to have a positive, important, and meaningful influence in your kids’ lives postdivorce, it’s not only in the children’s best interests to have both parents agree to agree, but it very well may be in yours, too.

Jonna Spilbor, Esq., is an unstuffy lawyer, radio host, motivational speaker, and TV legal analyst who appears regularly on Fox News and other major networks.